[2021] KEHC 6761 (KLR)

[2021] KEHC 6761 (KLR)

The court found that the applicants demonstrated a likelihood of suffering substantial loss if stay was not granted, as their properties—being their only homes and not charged to the interested party—were at risk of auction. The court recognized that the applicants had delayed in prosecuting their appeal and only...

Source-derived case information.

Citation
[2021] KEHC 6761 (KLR)
Parties
Appellant: Justus Gituma; Appellant: Simon Kathurima; Appellant: Emmanuel Muriungi; Appellant: Mercy Kagendo; Appellant: Henry Murithi; Appellant: Reuben Gitonga; Respondent: Daniel Kimathi; Respondent: Wilson Kimathi; Respondent: Tabitha Kanugu; Respondent: K-Rep Bank
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
4 March 2021
Case Number
Civil Appeal 143 of 2019
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Outcome
Conditional stay of execution granted pending appeal, subject to deposit of security.
Judges
EM Muriithi
Legal Topics
Stay of Execution, Security for Decree, Loan Repayment Dispute, Statutory Power of Sale, Group Liability, Auction of Property
Source Language
english
Civil Procedure Land and Property Banking and Finance Stay of Execution Security for Decree Loan Repayment Dispute Statutory Power of Sale Group Liability +1 more

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Parties

Justus Gituma

Appellant

Simon Kathurima

Appellant

Emmanuel Muriungi

Appellant

Mercy Kagendo

Appellant

Henry Murithi

Appellant

Reuben Gitonga

Appellant

Daniel Kimathi

Respondent

Wilson Kimathi

Respondent

Tabitha Kanugu

Respondent

K-Rep Bank

Respondent

Procedural Posture

Civil Appeal / Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the applicants are entitled to an order for stay of execution of the ruling/orders issued on 6th October 2020 pending the hearing and determination of the appeal.
  2. 2 Whether the applicants have demonstrated substantial loss if stay is not granted.
  3. 3 Whether the application for stay was made without unreasonable delay.

Ratio Decidendi

The court found that the applicants demonstrated a likelihood of suffering substantial loss if stay was not granted, as their properties—being their only homes and not charged to the interested party—were at risk of auction. The court recognized that the applicants had delayed in prosecuting their appeal and only acted after execution commenced, but considered the delay not unreasonable in light of the Covid-19 pandemic. The court held that the applicants had not offered security but, in the interests of justice and to preserve the subject matter pending appeal, granted a conditional stay of execution. The stay was made subject to the applicants depositing the sum of Ksh 575,058 plus...

Court Disposition

Conditional stay of execution granted pending appeal, subject to deposit of security.

Orders

  • An order for stay of execution of the ruling/orders issued on 6th October 2020 is granted pending hearing and determination of the appeal, subject to conditions.
  • Applicants shall deposit Ksh 575,058 plus interest accruing up to date of deposit in a joint interest-earning account in the names of advocates for all parties within 30 days.